Articles Posted inCalifornia

Can my spouse stop our divorce? After a petition for dissolution of marriage is filed, spouses may argue over many issues before the divorce is finally granted by the California family court. Issues that may cause contention include property division, spousal support, and child custody. One issue that many people may not consider is whether the divorce should be finalized at all. One recent media story highlights what can happen when one spouse refuses to cooperate with the divorce at all.

Can Refusing to Sign the Papers Stop Our Divorce?

The Kardashian family has repeatedly been in the news for high-profile divorces. For example, mom Kris Jenner recently filed for divorce from longtime spouse and former professional tennis player Bruce Jenner. The most recent story arises from reports that professional basketball player Lamar Odom is refusing to sign divorce papers filed by daughter Khloe Kardashian approximately ten months ago.

Going through a divorce and settling all related issues can be trying. Most people want to put the marriage and legal issues behind them once the divorce is finalized. Unfortunately, this is often not the case. Frequently, a former spouse will return to court in the years following a divorce in order to revisit legal matters or raise new complaints. Each time you return to court can be costly, and acrimonious tendencies may arise again. It is always important to have an experienced family law attorney on your side, one who can help you get the outcome you deserve and make the process of returning to court easier and less costly.

The Ongoing Case of U.S. Representative Mark Sanford

Mark Sanford is a member of the United States House of Representatives and a former governor of South Carolina. In 2009, Sanford disappeared unannounced for several days; his assistant claimed Sanford was hiking the Appalachian Trail. When he returned, Sanford admitted to having an affair with a woman in Argentina. Sanford’s wife, Jenny, subsequently filed for divorce. The divorce was granted and finalized in 2010.

Unmarried Couples? According to modern trends, more and more Californians are living together outside of marriage, whether for personal, financial, or other reasons. Even absent the traditional nuptials, however, such couples may, for all intents and purposes, behave just like married spouses–having children, sharing income, purchasing a home, or the like. But what happens when such couples split up? Without the formal act of marriage there can be no divorce. Many people wonder how California courts deal with questions of property and child custody in such situations.

Common Law Marriages in California?

There is a common perception that any couple who lives together long enough enters into a “common law” marriage. So how long must a couple live together before their relationship is considered a common law marriage? In fact, there is no such thing as common law marriage in California. Although the practice once existed, common law marriages were abolished in California back in 1895.

Utah’s anti-polygamy law was ruled unconstitutional this month when a federal district court judge in Utah struck down the state’s prohibition of “cohabitation,” perhaps opening the door for the eventual legalization of polygamous marriage. The case continues the recent trend, in courts and in the nation as a whole, toward changing the way we think about marriage and the regulation of personal relationships by the government.

The challenge to the Utah statute was brought by a Utah man (and reality television star) who lives with his four wives and 17 children. The court found that, under the First Amendment’s guarantee of the free exercise of religion, the statute’s language banning “cohabitation” is unconstitutional. The state can still prohibit actual polygamy by not allowing anyone to have more than one valid marriage license. However, the decision may pave the way for the legalization of polygamy sooner rather than later.

Another Significant Change to Domestic Relations Law

The decision is the latest in a line of cases, from Lawrence v. Texas in 2003 through US v. Windsor earlier this year, in which the federal courts have expanded the right to privacy and limited the government’s ability to regulate private sexual behavior. The Utah court specifically cited Lawrence, which struck down anti-sodomy laws in Texas. In that case, the majority opinion stated that the Constitution protects people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

The dissent in Lawrence famously argued that the decision would inevitably lead to the legalization of same-sex marriage, polygamy, and other non-traditional familial arrangements and sexual practices. If marriage is nothing more than a matter of choice by consenting parties, reasoned the dissent, then there is no basis for limiting it to opposite-sex couples or to just two people.

In Windsor, the Supreme Court found the Defense of Marriage Act unconstitutional, essentially requiring the federal government and state governments to recognize same-sex marriages from other states. Once again, critics predicted a “slippery slope” in which anti-polygamy laws would no longer stand up to constitutional scrutiny. If decisions about who can get married belong exclusively to the individuals involved, rather than to the community or government, then any regulation of those consensual decisions becomes intrusive.

The plaintiffs’ attorney in the Utah case, however, disagreed with the dissenting opinions in Lawrence and Windsor. He argued that those cases and the Utah decision ultimately come down to privacy, and to each person’s “right to be left alone as consenting adults.” People should be able to do whatever they want in their own homes, as long as they do not harm others. The government, the attorney argued, should not interfere with what its citizens do behind closed doors.

What to Do if You Want to Enter into a Non-traditional Marriage

Since the Utah decision relied on federal law, it would be equally applicable in California and other states. Continue reading →

If a separating couple can agree on a parenting plan, the court will usually issue an order reflecting those terms.

When a married couple with children decides to separate, one of the first steps they should take is to try and reach an agreement regarding how their children will be cared for after the separation occurs. In most cases, if the separating couple can agree on a parenting plan the court will issue a court order reflecting those terms.The court will make a decision regarding custody and visitation when separating parents cannot reach an agreement.
When a separating couple cannot agree on a parenting plan, a judge will issue a decision regarding custody and visitation. This may take some time, because certain criteria will need to be met before a decision is issued. For example, separating parents are required to meet with a court appointed counselor. In some instances, the counselor will provide the judge with a recommendation regarding the appropriate child custody and visitation arrangement. In addition, the judge may order that some or all family members undergo psychological evaluations.

However, if there are immediate concerns that need to be addressed, the court will issue a temporary order. Circumstances that may require a temporary order include when one parent is moving to another jurisdiction and wants to take the children along or when parents cannot agree on what school their children should attend.
Before issuing a final custody and visitation determination, the judge will consider what arrangement is in the best interest of the child. This determination will be made based on the information gathered through evaluations and other information submitted to the court. In addition, if the children involved are, “of sufficient age and capacity to reason” the court may consider their wishes regarding custody and visitation.
Typically, custody will be awarded to one or both parents. However, if the court determines that awarding custody to either parent would be detrimental or harmful to the child, they may award custody to another adult. There are several types of custody that the court may consider:Joint Legal Custody: This gives both parents the right and obligation to make significant decisions regarding their children’s health, welfare, and education.Sole Legal Custody: This give one parent the right and obligation to make significant decisions regarding the children’s health, welfare, and education.Joint Physical Custody: Children live with both parents, although not necessarily for equal amounts of time.Sole Physical Custody: Children live with one parent and the other parent has visitation rights.

The number of women committing adultery has increased significantly according to a recent survey conducted by the National Opinion Research Center challenging the notion that men are more adulterous than their female counterparts. Bloomberg Businessweek published data from the survey. According to the survey, while the percentage of men admitting to infidelity has remained consistent at about 21 percent for the past several years, the number of women admitting to adultery has increased significantly. For example, between 2010 and 2013, the number of women who admitted to cheating on their partners went from almost 15 percent to nearly 40 percent.

Greater economic independence is one factor that has contributed to the rise in infidelity amongst women.

Pepper Schwartz, a sociologist at the University of Washington attributes the rise in the number of women who cheat on their partners to changes in the country’s cultural and economic climate. With higher incomes and greater job prospects than ever before, women can now afford the possible economic consequences of having an affair.

Primary custody being sought by Usher Raymond’s ex-wife following the near drowning of Grammy winner Usher Raymond’s 5 year old son. Usher Raymond’s ex-wife Tameka Foster Raymond sought and was granted an emergency hearing in order to request custody of the former couple’s two children. The couple were married in 2007 and divorced two years later. Following a lengthy child custody battle, Mr. Raymond was awarded primary custody of both children.

The former couple’s son nearly drowned after being caught in a pool drain.

According to police reports, the couple’s son fell into the pool and was caught in the pool’s drain while under the supervision of Mr. Raymond’s aunt. A housekeeper tried to free the boy from the drain, but was unsuccessful. A contractor who was working on Mr. Raymond’s property was finally able to free Mr. Raymond’s son from the drain and perform CPR in order to revive the boy.

The boy’s mother alleged that the children are not adequately supervised under Mr. Raymond’s care and that he does not keep her informed of who is taking care of the children when he is away.

Ms. Raymond’s request alleged that her son suffered from a near-death accident after being left unsupervised at the singer’s home while he was out of town. During the court hearing, which was held at the Fulton County Superior Court in Atlanta, Georgia, both parents took the stand and testified before the presiding judge. Ms. Raymond testified that her ex-husband does not keep her informed of the children’s whereabouts and whose care they are in when Mr. Raymond is out of town. However, testimony revealed that Mr. Raymond’s aunt was sitting poolside watching both children play in the pool. In addition, Mr. Raymond was not out of town, but rather at a music studio just an exit away.

Ms. Raymond’s request was denied, but the Court advised Mr. Raymond to keep her informed of who is taking care of the children when he is away.

The Court denied Ms. Raymond’s request for temporary primary custody, as well as decision making authority. The Judge reasoned that the testimony and other evidence submitted to the Court did not suggest that anything could have been done to prevent the accident. However, the Judge did advise Mr. Raymond to keep his ex-wife abreast of his whereabouts and who is supervising the children when they are not in his care.

California also allows individuals to make an emergency request to the court to issue new custody or visitation orders or to change existing custody or visitation orders. This may be done in situations in which circumstances have occurred or may occur, such that it is in the best interest of the child for the court to modify their existing custody or visitation arrangements.

The California Supreme Court recently denied a bid to stop same sex marriages within the state while it considers a petition arguing that the ban on same sex marriage is still valid in all but two counties within the state. For same sex couples, the right to obtain a marriage license, which was banned in November 2008 with the passing of Proposition 8, was recently reinstated based on a decision issued by the United States Supreme Court.Recent United States Supreme Court ruling reinstated same sex couples’ right to marriage.
In the recent United States Supreme Court ruling, the country’s highest court determined that the sponsors of Proposition 8, which led to the 2008 ban on same sex marriages in California, lacked the legal authority to challenge a federal trial judge’s ruling which found the ban on same sex marriages in violation of the constitutional rights of gay and lesbian California residents.Petitioners argue that the Supreme Court’s ruling should be interpreted such that it only applies to two counties within California.
Proponents of the petition, which is currently being considered by the California Supreme Court, argue that a companion directive order issued by the trial judge, which required the governor, attorney general, and state public health director to cease enforcing Proposition 8 thereby lifting the ban on same sex marriages, was limited in jurisdictional scope. They argue that the directive order only applies to the two couples that sued to overturn Proposition 8 and to the counties in which they applied for marriage licenses, namely Alameda and Los Angeles counties.

California Supreme Court requested additional written arguments.
The California Supreme Court will have to determine whether it will take on the case at all. In order to make this decision, the California Supreme Court requested that additional written arguments be submitted by the first of August. At least 24 county clerks have submitted briefs arguing that state officials should guide actions with regard to issuing marriage licenses. They reason that guidance from state officials would ensure that marriage laws are consistent throughout the state.Bid to cease same sex marriages in the interim was made by the County Clerk of San Diego County.
The request to stop same sex marriages while the California Supreme Court decides whether or not it will take on the petition was made by County Clerk Ernest Dronenburg Jr., an elected government official responsible for issuing marriage licenses in San Diego County. Dronenburg, a Republican, was elected as San Diego County Clerk in 2010. He is widely known for his position on tax issues and his views on the authority of the governor, state attorney general and state officials who oversee marriage records.

In most cases, when a couple decides to separate and file for divorce their ownership in real estate acquired during the marriage and the resulting mortgage debt is the largest investment which they must split up. The division of debt is a complex process and requires parties to consider various issues at the same time. This can be a difficult task at any given time and becomes even more taxing when individuals are dealing with the stress of a separation. As such, it is important for married couples that own real estate together and have mortgage debt to consult with an experienced divorce attorney who can guide them through this process. A party is still liable for their joint mortgage obligation even when a court issues a divorce decree requiring their spouse to pay mortgage payments.
One of the most confusing aspects of a having a joint loan obligation with your spouse is the limitations of a divorce decree requiring your former spouse to maintain jointly owned properties or obligating your former spouse to pay mortgage payments. Unfortunately, a judicial decree of this type during your divorce proceeding does not absolve you from the loan obligation you share with your former spouse. This does not mean that you do not have other recourse against your former spouse if they fail to follow the court’s other. However, those measures will not protect your credit or change your legal obligation to lenders. Loan obligations are binding contacts, the terms of which must be satisfied even after a divorce.It’s best to end a marriage with as little joint debt as possible.
For this reason, many divorce attorneys advise their clients who are considering filing for divorce to end their marriage with as little joint debt as possible. However, in recent years, the decline of the real estate market has made this a difficult or non-existent option for some.If selling property is not an option, one spouse may be able to refinance or assume to mortgage debt.
However, this does not mean that you are without options if you are considering filing for divorce and hold a joint loan obligation with your spouse. You and your spouse may agree to refinance the loan in one of your names, removing the other’s liability for the debt. In some cases, your lender may allow you or your spouse to assume the mortgage debt independently. Both of these solutions require at least one spouse to possess the financial means to repay the mortgage debt in its entirety. In addition, refinancing often requires that the property have sufficient equity. However, if one of these options works for you and your spouse, interest in the property can be transferred to reflect the mortgage liability via a quitclaim deed or an interspousal transfer grant deed.

President Obama gave a Father’s Day speech in which he called for reforming child custody laws in order to allow fathers to become more engaged in their children’s lives. During divorce proceedings, fathers often feel disadvantaged when it comes to courts’ child custody determinations. These feelings are not always unwarranted.

Mothers receive primary custody in 70 percent of divorce cases.

Until the 1970’s, courts generally favored the mother when determining child custody arrangements. However, since then, the standard for determining child custody has been changed such that the ruling is based on what is in the best interest of the children. Despite this shift, the National Center for Health Statistics estimates that mothers are awarded primary custody of their children in approximately 70 percent of divorce cases.

Fathers often face hurdles such as, false accusations of child abuse or neglect. Moreover, during child custody proceedings, fathers often face false accusations of child abuse or neglect which they are forced to defend themselves against. Such allegations result in both emotional and financial strain. Defending against false accusations of child abuse or neglect can result in prolonged legal proceedings. In addition, fathers facing false accusations of child abuse or neglect are subject to limited and supervised visitation with their children.

In determining what is in the best interest of the child, courts consider which parent has the greatest involvement in the children’s day to day activities.

In order to determine what custody arrangement will allow the children to maintain the greatest level of normalcy during the divorce transition and thereafter. In addition to looking at whether a parent is financially capable of taking care of the children, courts will also look to see which parent had the greatest involvement in their children’s day to day activities.

Courts consider a number of factors when assessing each parent’s role in their children’s day to day activities and who served as the primary caretaker. These factors include: which parents helped the children get ready for school, which parents prepared meals for the children, which parent assisted the children with their homework, and which parent accompanied the children to their various activities.

California law requires couples to participate in mediation, providing an opportunity for parents to come up with their own agreement with the help of a mediator and their attorneys.

Under California law, parents are required to participate in mediation before a divorce proceeding can take place. This serves as an opportunity for parents to address child custody concerns and come up with a custody arrangement which they can both agree on with the help of a mediator, rather than having a custody arrangement imposed on their family by the courts.